Asserting a Future Breach of a Statutory Right is Not Enough

In Spaceman v ISS Mediclean Ltd t/a ISS Facility Service Healthcare (ISSM), the Employment Appeal Tribunal (EAT) has held that protection from dismissal for asserting a statutory right (in this instance, the right not to be unfairly dismissed) under S.104 of the Employment Rights Act 1996 (ERA) only applies where the employee alleged an actual breach of statute, not a threatened one.

The Facts

Mr Spaceman was employed by ISSM for 18 months as a dispatch porter in West Middlesex University Hospital. He worked night shifts from an office shared with female members of staff. One of those female employees made an allegation against Mr Spaceman of sexual harassment and assault. Mr Spaceman was suspended. Two other female employees subsequently made broadly similar allegations. ISSM investigated the matter and invited Mr Spaceman to a disciplinary hearing.

Prior to his disciplinary hearing, Mr Spaceman had been told by a co-worker that he would be “sacked anyway”. Mr Spaceman raised this at his disciplinary hearing. Over the next two weeks there was further investigation into issues raised at the hearing. Mr Spaceman was thereafter summarily dismissed.

The Claim

Mr Spaceman brought a claim against ISSM for automatically unfair dismissal contrary to S.104(1)(b) ERA.

Section 104(1) of the ERA states that an employee will be automatically unfairly dismissed if the reason (or the principal reason) for the dismissal is that the employee:

  1. brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or
  2. alleged that the employer had infringed a right of his which is a relevant statutory right.

Section 104(2) states that it is immaterial whether the employee has the right, or whether the right has been infringed; however, the claim to the right and that it has been infringed must be made in good faith.

A claim under section 104(1) ERA does not require any qualifying period of service.

Mr Spaceman’s case was that he was dismissed by virtue of the allegation he made at his disciplinary hearing – namely, that ISSM had already made up its mind to dismiss him, thereby infringing his statutory right not to be unfairly dismissed. Mr Spaceman’s claim was that the making of this allegation during the hearing had become the reason for his dismissal (rather than the alleged predetermined view).

An employment judge struck out Mr Spaceman’s claim on the basis that S.104(1)(b) ERA requires an allegation that the employer had actually infringed a statutory right, as opposed to an allegation that the employer threatened to infringe a statutory right. The Employment Tribunal commented that the use of the past tense in S.104(1)(b) ERA is significant. The right in question in this case was the right not to be unfairly dismissed. The assertion of this right could only be made after the dismissal. As such, and given that Mr Spaceman asserted a future breach of the statutory right not to be unfairly dismissed, it could not be relied on as the reason for dismissal.

Mr Spaceman appealed, arguing that the judge had taken an unduly narrow approach.

EAT Decision

Dismissing the appeal, the EAT agreed with the Employment Tribunal’s reasoning that S.104(1)(b) requires an allegation by the employee that there has been an infringement of a statutory right. The thrust of the allegation must be, ‘you have infringed my right’, not merely ‘you will infringe my right’. Although Mr Spaceman was complaining of unfairness in the procedure adopted, and of a settled intention to dismiss him in the future, he was not alleging that he had been dismissed already and therefore no infringement had occurred. In fact, the allegation was made when he was at a disciplinary hearing seeking to avoid that result.

The EAT noted that this had to be the correct construction of S.104(1)(b) ERA, as this avoided the potentially unfortunate consequence that an employee could always avoid the need for a period of qualifying service by claiming that they had been dismissed for asserting a future breach of a statutory right (e.g. the right not to be unfairly dismissed).

Comment

It is not uncommon for employees who do not have the requisite two years’ service in order to bring an ordinary unfair dismissal claim, to seek to rely on the protections afforded to them under S.104(2) ERA (as attempted by Mr Spaceman in the instant case). However, this case provides welcome clarification that in order to successfully bring any such claim, the employee must allege, in good faith, that an infringement has already occurred.

Whilst it does not matter whether the employee’s assertion is correct, a mere allegation of an intention to infringe will not suffice.